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News / Clark County News

Deal or no deal for suspects?

Crime victims, attorneys have differing views on plea bargains

By Jessica Prokop, Columbian Local News Editor
Published: September 13, 2015, 6:05am
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Crime victims, attorneys have differing views on plea bargains
Crime victims, attorneys have differing views on plea bargains Photo Gallery

Nearly two years ago, Daniel Alexander died in a car wreck on state Highway 14 in Vancouver. Alexander, 46, was a passenger, and the man behind the wheel was under the influence of Clonazepam, a nervous system depressant, at the time of the crash.

Alexander’s son, Joshua Alexander, said he expected the man who caused his father’s death to receive anywhere from five to 10 years in prison for his crimes. Instead, driver Kenneth L. Jones was sentenced in July to 24 months following a plea deal that shortened his potential sentence by more than four years.

“He was facing vehicular homicide, and to only get two years, I just don’t get it,” Alexander said. “It was a slap on the wrist.”

Jones’ criminal case is just one of the 97 percent of all such cases heard each year in Clark County Superior Court that are resolved through plea bargaining, and it highlights the struggle for crime victims who feel they are not getting justice. At the same time, attorneys and other experts maintain that plea deals are essential to the criminal justice system because there aren’t enough resources to bring every case to trial.

“Research shows without plea bargains, the system would come to a grinding halt,” said Jeff Barrar of the Vancouver Defenders. “If there were no plea deals, there would be no incentive to plead guilty.”

Striking a deal

Traditionally, a plea bargain occurs when a defendant agrees to plead guilty to one or more charges, often a lesser charge than what they’d face in trial, in exchange for a more lenient sentence. This also can include dismissing some related charges.

Clark County Prosecuting Attorney Tony Golik said he also considers any case resolved before trial — whether through a diversion program or therapeutic court — a plea bargain.

Golik said it’s rare that defendants change their pleas without some kind of deal, and in most cases, the prosecution offers some alternative to a trial.

There are a number of factors the prosecution considers when determining whether to make an offer: the facts and strength of the case, the defendant’s criminal history and age, and how egregious the case is, Golik said.

“Our job as prosecutors is to get a reasonable resolution and to make sure the defendant is held accountable,” he said.

In Jones’ vehicular homicide case, Senior Deputy Prosecutor Kasey Vu said he negotiated the plea deal because there was a chance some crucial evidence may have been suppressed during a trial. The lack of evidence would have likely resulted in Jones being acquitted, he said.

“The family sometimes does not understand all of the nuances and potential results that could occur. We try to explain to them, as much as we can, but sometimes they don’t hear it or they don’t want to hear it,” Vu said. “None of it is easy. They are all difficult cases. … We have to deal with the cases that are presented to us and resolve them the best way we can.”

Prosecutors try to negotiate a deal similar to what they’d expect the outcome of a trial would be, Golik said.

Barrar said it’s the defense attorney’s job to thoroughly investigate the case, try to identify any legal issues and look at clients’ criminal history. Then, the attorney sits down with his or her client and has a “frank” discussion about their options, he said.

“The term damage control comes into play,” he said. Is the defendant willing to take a risk by going to trial and leaving it up to a jury?

On average, Barrar has handled about 100 cases a year for the last 25 years in Clark County, he said, and estimates about 95 percent of those were resolved with a plea deal.

He said the prosecution has the power to add or dismiss charges throughout the duration of a case, and that process can be used to force defendants into a “cubby.”

“In a perfect world, I would like to see people held accountable for what they did and not for their aversion to risk. And, I would like to see the prosecution prosecute cases that they can prove beyond a reasonable doubt,” Barrar said.

By the numbers

From 2009 to 2013, nearly 97 percent of all criminal Clark County Superior Court cases, on average, ended with plea bargains, according to the most recent data available from the prosecuting attorney’s office.

In 2013, about 58 cases went to trial of 2,358 felony cases filed that year. Of those cases filed, about 215 were dismissed, according to a Columbian analysis of court data.

To the average citizen, Golik said it may seem like too many cases are being resolved through plea bargaining. However, he said Clark County Superior Court’s averages are comparable to other Washington counties whose populations are 200,000 or more.

In those counties, the percentage of cases that didn’t go to trial in 2014 ranged from about 95 percent in King County to 97.7 percent in Spokane County. (See chart at right for more information.)

The Clark County Prosecuting Attorney’s Office doesn’t keep track of how many plea deals it offers, Golik said.

Each year, upwards of 2,000 felony cases are filed in Clark County Superior Court.

“Why would society want to run all of those cases in front of a jury? It would be incredibly costly for taxpayers,” Golik said.

While most cases handled by the criminal division of the prosecutor’s office are simple enough — only requiring local witnesses and few experts — high-profile cases can cost upwards of $50,000 each, according to court officials.

Reducing caseload

Los Angeles criminal defense attorney Martin Lijtmaer says plea bargaining is critical to the criminal justice system because it helps alleviate case volume. He has handled cases in both federal and state court in California for the last five years, during which time he’s managed about 100 plea deals, he said.

Plea bargains offer certainty of outcome, which is a “power commodity in the criminal justice world,” he said in an email.

Defendants want to know what they’re facing and have some ability to alter the terms of the deal. Prosecutors want to get a conviction and not try the case when they have dozens of other cases on their docket that may go to trial, Lijtmaer explained.

“Jury trials are all-or-nothing affairs, and many defendants and attorneys prefer to have a certain result than to leave things up to 12 strangers who are notoriously unpredictable,” he said.

Additionally, the threat of mandatory minimums — sentencing laws that require specific prison terms for people convicted of certain federal and state crimes — make taking a plea deal more appealing, Lijtmaer said. Agreeing to plead guilty to a lesser crime that doesn’t have that mandatory minimum sentence is one of the only ways to prevent a lengthy prison stay.

“By plea bargaining, you can eliminate even up to 90 percent of the jail time,” he said.

‘Coerced’ plea bargains

In his November 2014 essay published in the New York Review of Books, U.S. District Judge Jed S. Rakoff argued that the criminal justice system is dominated by plea bargaining, and it lacks judicial oversight. Rakoff, who is on senior status in the Southern District of New York, said the outcome is largely determined by the prosecutor.

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The problem with this, he argued, is that there isn’t enough power remaining with the defense counsel and judges to “keep the system honest.”

Rakoff added that sentencing guidelines “provide prosecutors with weapons to bludgeon defendants into effectively coerced plea bargains.”

For example, a defendant might plead guilty if promised his or her sentence will be at the lower end of the sentencing range, instead of going to trial, being found guilty, and getting a longer sentence from the judge.

In some cases, defendants elect to take a plea deal, despite being innocent, because they fear they could end up with more time after going to trial. Golik said he’s sure that this scenario has happened in Clark County at some point but said he thinks “it’s a very small percentage.”

“I’m not going to say it hasn’t happened here,” he said. “We do our best to make sure that isn’t happening. That would be the worst possible thing that can happen. … A significant job of the prosecution is to be confident that we are doing justice, not just seeking a sentence that we think we can get.”

But Joshua Alexander said it seems like prosecutors “are trying to get a win regardless.”

Jones, who’s now in prison for the vehicular homicide of Daniel Alexander, is scheduled to be released in the summer of 2017.

Joshua Alexander said he’s seen people with drug-distribution charges receive more prison time. He said there should be a requirement that any homicide case automatically go to trial.

“In a case like this, a plea deal shouldn’t be a small fraction of what the maximum penalty should be,” he said.